Superior Court finds borough invocation policy violates Constitution

Editor’s note: This article has been updated to include more background information and quotes from sources including Borough Mayor Charlie Pierce.

The Alaska Superior Court has ruled against the Kenai Peninsula Borough in a fight over its controversial invocation policy, finding that the policy violates the Alaska Constitution.

In Hunt et al. v. Kenai Peninsula Borough, Anchorage Superior Court Judge Andrew Peterson has ruled that the borough’s invocation policy violates the establishment clause, which refers to the mandate in the Constitution banning the government from establishing an official religion or favoring one religion or belief over another.

The borough had claimed that a resolution passed by the borough assembly — which allows a chaplain serving the military, law enforcement agencies, fire departments, hospitals or other similar organizations to give invocations before Kenai Peninsula Borough Assembly meetings, as well as people who are members of a religious organization with an “established presence” in the borough that meets regularly — was inclusive of all religious groups. In today’s ruling, the Superior Court rejected that claim.

“The Resolution is inclusive of tax-exempt religious association(s) serving residents of the borough. It is not inclusive of every religious view or belief practiced by the residents of the Kenai Peninsula Borough,” Peterson wrote. “Plaintiffs Hunt, Fontana, and Boyer are all examples of borough residents whose religions values are excluded and disfavored by the Resolution.”

Lance Hunt, an atheist, Iris Fontana, a member of The Satanic Temple, and Elise Boyer, a member of the small Jewish community in Homer, all applied to give invocations after the policy was established in 2016. All three were denied because they did not belong to official organizations with an established presence on the peninsula.

“Plaintiffs allege that the invocation selection policy implemented through the Resolution violates the prohibition against the establishment of religion, denies them of their freedom of speech and freedom of association, and denies them of their entitlement to equal rights, opportunities, and protection,” the decision states.

The Superior Court ruled only on the establishment clause issue, and did not reach a decision on the free speech, freedom of association and equal protection claims because it disposed of the issue by ruling that the invocation resolution violated the Alaska Constitution.

A Homer man, Barrett Fletcher, started a chapter of the Church of the Flying Spaghetti Monster in January to test the borough’s invocation policy. When the borough assembly met in Homer on Sept. 18, Fletcher applied to deliver the invocation, but was denied because his chapter did not meet the resolution’s criteria. Fletcher was not part of the lawsuit.

“Essentially I’m glad the court upheld the Constitution and I hope the Assembly will just drop the whole thing rather than fan (further) controversy,” Fletcher said in a message to the Homer News. “But the First Lower Congregation of Pastafarians will likely continue to have the occasional meeting just because it turns out to be (as His Noodliness, The Great Flying Spaghetti Monster intended) kind of fun.”

Borough Attorney Collette Thompson sent an email to assembly members before their Tuesday meeting announcing the Superior Court decision. During the meeting, assembly member Willy Dunne (who at one point had introduced an ordinance to do away with the invocation entirely) mentioned assembly members had discussed the issue in a committee meeting earlier in the day. He asked Borough Mayor Charlie Pierce what the borough’s next steps will be.

Pierce said he met briefly Tuesday with the borough’s legal department to go over the ruling, but that some may have not had enough time to go over it all.

“I think that the action plan at this point from the mayor’s office is to bring something back to you in the way of having some discussion as to whether we appeal or not,” Pierce said. “And that decision will be ultimately up to you, and then you will also have the responsibility — it’s a court ruling at this point, and we will have to make some modifications to the existing — we’ll go through the legal department and look at the existing policy or practices that are being followed, and we will follow the directives of the court.”

In running for election to borough mayor in 2017, Pierce said at a Homer debate that he thought the invocation resolution discriminated.

“You can’t discriminate,” he said in September 2017.

The borough assembly has for decades opened each meeting with a prayer from a member of the community, predominately Christian pastors. Those wishing to give invocations had to voluntarily sign up on a first come, first serve basis.

The invocation policy arose out of a larger discussion about the role of prayer at the public meetings. In 2016, borough residents started saying the invocations made them uncomfortable and suggested the borough do away with the practice entirely. An ordinance that would have eliminated the invocations was shot down before it could be introduced, so the assembly went in the other direction, deciding to let anyone from the community give one.

In August 2016, Fontana gave an invocation before an assembly meeting that ended with the words “Hail Satan,” which sparked more community outcry and conversation. Eventually, assembly members came to a consensus on a policy to guide how invocations could be given before meetings, and adopted its new policy in October 2016.

The policy restricted the ability to give an invocation to those who were members of an organization with an established presence on the peninsula, that “regularly meet for the primary purpose of sharing a religious perspective,” according to the resolution that set up the policy.

The borough has defended its policy based on the decision made in Town of Greece v. Galloway, a 2014 case in which the U.S. Supreme Court ruled that it did not violate the Constitution for government bodies to allow invocations before their meetings. But the Superior Court found the Greece policy did not have the restrictions of the borough resolution.

“The court held that sectarian invocations are constitutional so long as a policy of nondiscrimination is maintained,” Peterson wrote of the Greece case in its decision.

He went on to find that “history and tradition support an inclusive invocation policy. Not one that is inclusive of ‘diverse religious association(s),’ but rather one that is inclusive of every faith. The Resolution at issue here excludes minority faiths from participating in the invocation practice.”

Dunne, who voted against the invocation policy when it first came to the assembly, said he was not surprised by the court’s decision.

“I thought all along that the policy was unconstitutional,” he said. “I guess my biggest concern was, I thought it was really unfortunate the borough chose to spend so much tax payer money to defend a policy that was clearly discriminatory.”

In addition to voting against the policy originally, Dunne also introduced an ordinance to do away with it after it was enacted. He also brought forward a resolution that would have tweaked the policy to allow anyone to give an invocation. Both measures were voted down by the assembly.

Dunne acknowledged that the make up of the assembly is different two years on from when the policy was brought up for the first time.

“There are some new assembly members, but I don’t know where they stand on this,” he said. “I hope everybody would agree that it’s unacceptable to waste taxpayer dollars on lawsuits.”

Dunne’s preference is still that the assembly does away with the invocation entirely, but he said that if there is a policy in place, it should allow any person of any faith to deliver one.

“I would think the best policy would be to allow anyone to give an invocation, but personally I believe the invocations are not necessary,” he said. “We can do our business without opening with a prayer.”

The borough, represented by Anchorage-based attorney Kevin Clarkson, had filed for a partial summary judgment on three out of the four claims made by the plaintiffs. Clarkson works with the Alliance Defending Freedom, a Scottsdale, Arizona-based nonprofit that regularly litigates cases around the U.S. related to religious freedom, abortion and marriage rights. Through Clarkson, the Alliance Defending Freedom offered legal counsel to the borough and paid for part of the cost of its legal defense.

The plaintiffs, represented by Eric Glatt of the American Civil Liberties Union of Alaska, then filed their own motion for a summary judgment on all four of their claims. A summary judgment can be granted when neither party disagrees about the facts of the case.

“The parties in this case agree that the material facts are not in dispute and the case should be resolved on summary judgment; they just disagree over the outcome,” the decision states.

ACLU of Alaska sent out a press release Wednesday highlighting the case ruling. Executive Director Joshua Decker wrote in the press release that the ACLU had sent letters and spoken to the assembly before the suit was filed, asking them not to move forward with the policy.

“We are grateful Judge Peterson agreed with our position that in America, the government cannot declare 1st class faiths and 2nd class faiths,” Decker in the release. “The ACLU of Alaska is proud to stand up for the freedom to peacefully worship for all faiths free from governmental judgement.”